By Rodriguez H.B. No. 2427
75R8670 SKB-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the certification and training of medical radiologic
1-3 technologists; providing an administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. The Medical Radiologic Technologist Certification
1-6 Act (Article 4512m, Vernon's Texas Civil Statutes) is amended to
1-7 read as follows:
1-8 Sec. 2.01. SHORT TITLE. This article may be cited as the
1-9 Medical Radiologic Technologist Certification Act.
1-10 Sec. 2.02. PURPOSE. It is the purpose of this Act to
1-11 protect the health and safety of the people of this state from the
1-12 harmful effects of excessive radiation used for medical purposes by
1-13 establishing minimum standards for the certification of medical
1-14 radiologic technologists and training standards for other persons
1-15 performing radiologic procedures.
1-16 Sec. 2.03. DEFINITIONS. In this Act:
1-17 (1) ["Advisory board" means the Medical Radiologic
1-18 Technologist Advisory Board.]
1-19 [(2)] "Department" means the Texas Department of
1-20 Health.
1-21 (2) [(3)] "Radiologic technology" means the
1-22 administration of radiation to a person for medical purposes.
1-23 (3) [(4)] "Radiation" means ionizing radiation in
1-24 amounts beyond normal background levels from sources such as
2-1 medical and dental radiologic procedures.
2-2 (4) [(5)] "Radiologic procedure" means any procedure
2-3 or article intended for use in the diagnosis of disease or other
2-4 medical or dental conditions in humans (including diagnostic X-rays
2-5 or nuclear medicine procedures) or the cure, mitigation, treatment,
2-6 or prevention of disease in humans that achieves its intended
2-7 purpose through the emission of radiation.
2-8 (5) [(6)] "Practitioner" means a doctor of medicine,
2-9 osteopathy, podiatry, dentistry, or chiropractic who is licensed
2-10 under the laws of this state and who prescribes radiologic
2-11 procedures for other persons.
2-12 (6) [(7)] "Medical radiologic technologist" means a
2-13 person certified under this Act, other than a practitioner, who,
2-14 under the direction of a practitioner, intentionally administers
2-15 radiation to other persons for medical purposes.
2-16 (7) [(8)] "Certification" means an authorization to
2-17 administer radiation to a person for medical purposes.
2-18 (8) [(9)] "General certification" means an
2-19 authorization to perform radiologic procedures authorized by this
2-20 Act.
2-21 (9) [(10)] "Limited certification" means an
2-22 authorization to perform radiologic procedures that are limited to
2-23 specific parts of the human body.
2-24 (10) [(11)] "Temporary certification, general or
2-25 limited," means an authorization to perform radiologic procedures
2-26 for a limited period, not to exceed one year.
2-27 (11) [(12)] "Registered Nurse" means a person licensed
3-1 by the Board of Nurse Examiners to practice professional nursing.
3-2 (12) [(13) "Direct supervision" means supervision and
3-3 control by a medical radiologic technologist or a practitioner who
3-4 assumes legal liability for a student employed to perform a
3-5 radiologic procedure and enrolled in a program that meets the
3-6 requirements adopted by rule under Section 2.05 of this Act, and
3-7 who is physically present during the conduct of a radiologic
3-8 procedure to provide consultation or direct the action of the
3-9 student.]
3-10 [(14)] "Education program" means clinical training or
3-11 any other program offered by an organization approved by the Texas
3-12 Board of Health that:
3-13 (A) has a specified objective;
3-14 (B) includes planned activities for the
3-15 participants; and
3-16 (C) uses an approved method for measuring the
3-17 progress of the participants.
3-18 (13) [(15) "Authorized person" means a person who
3-19 meets or exceeds the minimum educational standards of the Texas
3-20 Board of Health under Section 2.05(f) of this Act.]
3-21 [(16)] "Registrant" means an individual, other than a
3-22 practitioner or medical radiologic technologist, who performs
3-23 radiologic procedures and is placed or subject to placement on the
3-24 registry maintained by the department [meets the requirements of
3-25 Section 2.05(f) of this Act].
3-26 Sec. 2.04. [CREATION OF MEDICAL RADIOLOGIC TECHNOLOGIST
3-27 ADVISORY BOARD. (a) The Medical Radiologic Technologist Advisory
4-1 Board is created as an advisory board to the Texas Board of Health.
4-2 The Texas Board of Health shall appoint 12 members who must have
4-3 the following qualifications:]
4-4 [(1) two must be consumers;]
4-5 [(2) three must be medical radiologic technologists
4-6 who meet the qualifications for certification under this Act;]
4-7 [(3) one must be a nuclear medicine technologist;]
4-8 [(4) one must be a radiation therapy technologist;]
4-9 [(5) one must be a licensed physician who is a general
4-10 practitioner or a family practitioner;]
4-11 [(6) one must be a licensed physician who is a
4-12 radiologist;]
4-13 [(7) one must be a chiropractor;]
4-14 [(8) one must be a medical radiation physicist engaged
4-15 in the instruction of radiologic technologists; and]
4-16 [(9) one must be a hospital administrator.]
4-17 [(b) Members are appointed for staggered terms of six years,
4-18 with four members' terms expiring January 1 of each even-numbered
4-19 year. If a vacancy occurs on the advisory board, the Texas Board
4-20 of Health shall appoint a person having the appropriate
4-21 qualifications to serve the unexpired portion of the term.]
4-22 [(c) The advisory board may adopt rules for the conduct of
4-23 its activities and may elect a chairman from among its members.
4-24 The members serve without compensation, but a member of the
4-25 advisory board is entitled to receive the per diem and travel
4-26 allowance authorized by the General Appropriations Act for state
4-27 employees.]
5-1 [(d) The advisory board shall recommend for the
5-2 consideration of the Texas Board of Health rules to implement
5-3 standards adopted under this Act and shall recognize existing
5-4 standards that apply to the scope of practice for both general and
5-5 limited certifications.]
5-6 [(e) The advisory board shall recommend for the approval of
5-7 the Texas Board of Health examinations that may be required by
5-8 rules adopted under this Act.]
5-9 [Sec. 2.05.] Duties of Texas Board of Health. (a) The
5-10 Texas Board of Health shall adopt rules establishing:
5-11 (1) minimum standards for issuing, renewing,
5-12 suspending, and revoking certificates issued under this Act;
5-13 (2) minimum standards for the approval of curricula
5-14 and education programs to train individuals, registered nurses, and
5-15 physician assistants to perform radiologic procedures and for
5-16 rescinding the approval;
5-17 (3) minimum standards for the approval of instructors
5-18 to teach approved curricula or education programs to train
5-19 individuals to perform radiologic procedures and for rescinding the
5-20 approval; and
5-21 (4) a registry of persons, other than practioners or
5-22 medical radiologic technologists, who perform radiologic procedures
5-23 [are required to comply with Subsection (f) of this section]. An
5-24 agency required to adopt rules under Section 2.06 of this Act shall
5-25 report annually to the department and provide a list of all
5-26 persons, other than practitioners, registered with the agency to
5-27 perform radiologic procedures. A hospital or federally qualified
6-1 health center shall report annually to the department and provide a
6-2 list of all persons, other than practitioners, employed or used by
6-3 the hospital or center to perform radiologic procedures. The
6-4 annual reports must provide identifying information on the persons
6-5 listed in the report as required by department rule.
6-6 (b) The Texas Board of Health shall establish different
6-7 classes of certificates to include all radiologic procedures used
6-8 in the course and scope of the practice of practitioners licensed
6-9 in this state. The Texas Board of Health may issue general and
6-10 limited certificates and general and limited temporary
6-11 certificates. The Texas Board of Health may issue a program
6-12 certificate to an education program that meets the minimum
6-13 standards adopted under this section.
6-14 (c) When adopting minimum standards for certifying medical
6-15 radiologic technologists, the Texas Board of Health may establish
6-16 criteria for issuing a certificate to a person licensed or
6-17 otherwise registered as a medical radiologic technologist by
6-18 another state, the American Registry of Radiologic Technologists,
6-19 [the American Registry of Clinical Radiography Technologists,] the
6-20 District of Columbia, or a territory of the United States whose
6-21 requirements for licensure or registration were at the date of
6-22 licensing or registration substantially equal to the requirements
6-23 set forth in this Act.
6-24 (d) The Texas Board of Health may establish guidelines,
6-25 which may include requirements for continuing education for medical
6-26 radiologic technologists, and the Texas Board of Health may prepare
6-27 and conduct an examination for applicants for a certificate. Each
7-1 registrant shall complete a minimum of eight hours of continuing
7-2 education or in-service training in radiation safety and protection
7-3 each calendar year unless the registrant is registered with a state
7-4 agency that has adopted other continuing education requirements
7-5 under Section 2.06 of this Act for persons registered with the
7-6 agency.
7-7 (e) The Texas Board of Health may adopt rules necessary to
7-8 implement this Act.
7-9 (f) The minimum standards of the Texas Board of Health for
7-10 approval of curricula and education programs under Subsection (a)
7-11 of this section shall include mandatory training [guidelines] for a
7-12 person who intentionally administers radiation to another person
7-13 for medical purposes. Mandatory training does not apply to[, other
7-14 than] a practitioner or a medical radiologic technologist, [who
7-15 intentionally administers radiation to another person for medical
7-16 purposes, including] a person who does not hold a certificate
7-17 issued under this Act who is performing a radiologic procedure [at
7-18 a hospital or] under the direction of a [practitioner, other than
7-19 a] dentist, or a person who is a student enrolled in a program that
7-20 meets the minimum standards adopted under this section if the
7-21 person is performing radiologic procedures in an academic or
7-22 clinical setting as part of the program. The mandatory training
7-23 program approved by the Texas Board of Health must contain an
7-24 appropriate number of hours of education that must be completed
7-25 before the person may perform a radiologic procedure. The
7-26 department may, by rule, reduce the number of hours of required
7-27 education for a person who has training or work experience in
8-1 performing radiologic procedures.
8-2 (g) The Texas Board of Health with the assistance of other
8-3 appropriate state agencies shall by rule identify radiologic
8-4 procedures that are dangerous or hazardous and that may only be
8-5 performed by a practitioner, [or] a medical radiologic technologist
8-6 certified under this Act, or a person who is a student enrolled in
8-7 a program that meets the minimum standards adopted under this
8-8 section if the person is performing radiologic procedures in an
8-9 academic or clinical setting as part of the program. A registrant
8-10 may not perform radiologic procedures that have been identified as
8-11 dangerous or hazardous.
8-12 (h) Subsection (g) of this section does not apply to a
8-13 radiologic procedure involving a dental X-ray machine, including a
8-14 panarex or other equipment designed and manufactured only for use
8-15 in dental radiography.
8-16 (i) On the application to the department by a hospital,
8-17 federally qualified health center as defined by 42 U.S.C. Section
8-18 1396d, or practitioner, the department shall exempt the applicant
8-19 from the requirements of Subsection (f) of this section in
8-20 employing a person certified under this Act or trained as required
8-21 by Subsection (f) of this section if the applicant shows a hardship
8-22 in employing a person certified under this Act or trained as
8-23 required by Subsection (f) of this section.
8-24 (j) The following conditions are considered to be hardships
8-25 for the purposes of Subsection (i) of this section:
8-26 (1) that the hospital, federally qualified health
8-27 center, or practitioner reports an inability to attract and retain
9-1 medical radiologic technologists, as determined by the board;
9-2 (2) that the hospital, federally qualified health
9-3 center, or practitioner is located at a great distance from the
9-4 nearest [a] school of medical radiologic technology, as determined
9-5 by the board;
9-6 (3) that there is a list of qualified applicants to
9-7 the nearest [a] school of medical radiologic technology whose
9-8 admissions are pending because of a lack of faculty or space, as
9-9 documented by the school;
9-10 (4) that the nearest school of medical radiologic
9-11 technology produces an insufficient number of graduates in medical
9-12 radiologic technology to meet the needs of the hospital, federally
9-13 qualified health center, or practitioner; [or]
9-14 (5) that the hospital, federally qualified health
9-15 center, or practitioner reports that it employs a person who worked
9-16 before January 1, 1998, in accordance with Section 2.05(c) or (d)
9-17 of this Act at or with the hospital, federally qualified health
9-18 center, or practitioner; or
9-19 (6) any other criteria determined by department rule.
9-20 (k) In adopting rules under Subsection (g) of this section,
9-21 the Texas Board of Health may consider whether the radiologic
9-22 procedure will be performed by a registered nurse or a licensed
9-23 physician assistant.
9-24 [Sec. 2.06. ADMINISTRATION. The certification program
9-25 required under this Act shall be administered by the bureau of
9-26 licensing and certification of the Texas Board of Health.]
9-27 Sec. 2.05 [2.07]. Authorization to Perform Procedure. (a)
10-1 Except as otherwise provided by this section, to perform a
10-2 radiologic procedure a person must hold a certificate issued under
10-3 this Act.
10-4 (b) A person is not required to hold a certificate issued
10-5 under this Act to perform a radiologic procedure if the person is a
10-6 practitioner and performs the procedure in the course and scope of
10-7 the profession for which the person holds the license.
10-8 (c) A person is not required to hold a certificate issued
10-9 under this Act to perform radiologic procedures if the person
10-10 performs the procedures under the instruction or direction of a
10-11 practitioner if the person and the practitioner are in compliance
10-12 with rules adopted under Section 2.06 [2.08] of this Act.
10-13 (d) A person who performs a radiologic procedure in a
10-14 hospital that participates in the federal Medicare program or that
10-15 is accredited by the Joint Commission on Accreditation of Hospitals
10-16 [and who has completed a training program approved by the Texas
10-17 Board of Health under Section 2.05(f) of this Act] may perform
10-18 radiologic procedures without a certificate issued under this Act.
10-19 (e) A person is not required to hold a certificate issued
10-20 under this Act or to comply with the registration requirements
10-21 adopted under Section 2.06 [2.08] of this Act if the person is a
10-22 student enrolled in a program which meets the minimum standards
10-23 adopted under Section 2.04 [2.05] of this Act and if the person is
10-24 performing radiologic procedures in an academic or clinical setting
10-25 as part of the program.
10-26 (f) A person is not required to hold a certificate issued
10-27 under this Act or to comply with the registration requirements
11-1 adopted under Section 2.06 [2.08] of this Act if the person is
11-2 licensed or otherwise registered as a medical radiologic
11-3 technologist in another state, the District of Columbia, a
11-4 territory of the United States, the American Registry of Radiologic
11-5 Technologists, [the American Registry of Clinical Radiography
11-6 Technologists,] or a professional organization or association
11-7 recognized by the Texas Board of Health; if the person is enrolled
11-8 in continuing education which meets the requirements adopted under
11-9 Section 2.04 [2.05]; and if the person is performing radiologic
11-10 procedures as part of the continuing education for a period of not
11-11 more than 10 days. A person exempt from the certification
11-12 requirements under this subsection is also exempt from the
11-13 mandatory training required under Section 2.04(f).
11-14 (g) A person is not required to hold a certificate issued
11-15 under this Act to perform a radiologic procedure if:
11-16 (1) the procedure is performed under the supervision
11-17 of a dentist; and
11-18 (2) the person is:
11-19 (A) registered with the State Board of Dental
11-20 Examiners; and
11-21 (B) in compliance with rules adopted by that
11-22 board under Section 2.06 [2.08] of this Act.
11-23 Sec. 2.06 [2.08]. AGENCY RULES. (a) This section applies
11-24 to the Texas State Board of Medical Examiners, the Texas Board of
11-25 Chiropractic Examiners, the Texas State Board of Dental Examiners,
11-26 the Texas State Board of Podiatric Medical Examiners, and the Board
11-27 of Nurse Examiners.
12-1 (b) Each agency, other than the Board of Nurse Examiners,
12-2 subject to this Act shall adopt rules in accordance with Chapter
12-3 2001, Government Code, to regulate the manner in which a licensee
12-4 of the agency may order, instruct, or direct another authorized
12-5 person in the performance of radiologic procedures. Rules adopted
12-6 under this subsection shall allow a practitioner the right to
12-7 delegate certain designated radiologic procedures to a person not
12-8 certified under this Act if the delegation is allowed by the
12-9 regulatory board that licenses the practitioner.
12-10 (c) Rules adopted under this section must:
12-11 (1) require a [an authorized] person, other than a
12-12 registered nurse, to register with the agency that licenses the
12-13 practitioner under whom the person performs radiologic procedures;
12-14 (2) establish reasonable and necessary fees to cover
12-15 the administrative costs incurred by the agency in administering a
12-16 registration program created under this subsection;
12-17 (3) establish grounds for the suspension, revocation,
12-18 or nonrenewal of a registration issued under this subsection; and
12-19 (4) establish standards, in addition to those required
12-20 by this Act, for the training and supervision of the operators of
12-21 the equipment.
12-22 (d) In adopting rules under Subsection (c) of this section,
12-23 an agency may take into account whether the radiologic procedure
12-24 will be performed by a registered nurse.
12-25 (e) The Board of Nurse Examiners may adopt rules governing
12-26 registered nurses performing radiologic procedures under
12-27 Subsections (b) and (d) of Section 2.05 [2.07] of this Act and
13-1 shall require registered nurses performing radiologic procedures
13-2 under Subsection (b) of Section 2.05 [2.07] to register with the
13-3 Board of Nurse Examiners and to identify the practitioner ordering
13-4 those procedures. The board shall notify the agency licensing the
13-5 practitioner that the nurse has registered with the board.
13-6 Sec. 2.07 [2.09]. Application Procedures; Rules; Fees. (a)
13-7 Application for certificates shall be made to the department on a
13-8 form and under rules prescribed by the Texas Board of Health. A
13-9 nonrefundable application fee determined by the Texas Board of
13-10 Health shall accompany the application. Applicants who meet the
13-11 minimum standards adopted under Section 2.04 [2.05] of this Act
13-12 shall be issued a certificate by the department that shall be valid
13-13 for a period established by the Texas Board of Health.
13-14 (b) Applications for approval of curricula and training
13-15 programs shall be made to the department on forms and under rules
13-16 prescribed by the Texas Board of Health. Curricula and training
13-17 programs that meet the minimum standards adopted under Section 2.04
13-18 [2.05] of this Act shall be approved by the department, and such
13-19 approval may be reviewed periodically [annually] by the department.
13-20 The Texas Board of Health may set a fee for approval of curricula
13-21 and training programs not to exceed the estimated amount that is
13-22 projected by the department to be required for the evaluation of
13-23 the curricula or training program.
13-24 (c) Applications for approval of instructors shall be made
13-25 to the department on forms and under rules prescribed by the Texas
13-26 Board of Health. Instructors who meet the minimum standards
13-27 adopted under Section 2.04 [2.05] of this Act shall be approved by
14-1 the department. That approval may be reviewed annually by the
14-2 department.
14-3 (d) The Texas Board of Health may set fees for administering
14-4 a registration program, examination, certificate issuance, [and]
14-5 certificate renewal, and review of hardship exemption applications.
14-6 The Texas Board of Health shall set the fees in amounts that are
14-7 reasonable to cover the costs of administering this Act without the
14-8 use of additional general revenue funds.
14-9 Sec. 2.08 [2.10]. Disposition of Funds. All fees received
14-10 by the department under this Act shall be deposited in the State
14-11 Treasury to the credit of the General Revenue Fund and may be
14-12 appropriated only for the administration of this Act.
14-13 Sec. 2.09 [2.11]. Disciplinary Actions. (a) The department
14-14 is authorized to take the following disciplinary actions for the
14-15 violation of any provisions of this Act or rules adopted under this
14-16 Act:
14-17 (1) suspension, revocation, or nonrenewal of a
14-18 certificate;
14-19 (2) rescission of curriculum, training program, or
14-20 instructor approval;
14-21 (3) denial of an application for certification or
14-22 approval;
14-23 (4) assessment of a civil penalty in an amount not to
14-24 exceed $1,000 for each separate violation of this Act;
14-25 (5) issuance of a reprimand; or
14-26 (6) placement of the offender's certificate on
14-27 probation and requiring compliance with a requirement of the
15-1 department, including submitting to medical or psychological
15-2 treatment, meeting additional education requirements, passing an
15-3 examination, or working under the supervision of a medical
15-4 radiologic technologist or [other] practitioner.
15-5 (b) The procedure by which the department takes a
15-6 disciplinary action and the procedure by which a disciplinary
15-7 action is appealed are governed by department rules for a contested
15-8 case hearing and by Chapter 2001, Government Code.
15-9 (c) The department may take disciplinary action against a
15-10 person subject to this Act for:
15-11 (1) obtaining or attempting to obtain a certificate or
15-12 program certificate issued under this Act by bribery or fraud;
15-13 (2) making or filing a false report or record made in
15-14 the person's capacity as a medical radiologic technologist or
15-15 relating to the performance of radiologic procedures as permitted
15-16 under this Act;
15-17 (3) intentionally or negligently failing to file a
15-18 report or record required by law;
15-19 (4) intentionally obstructing or inducing another to
15-20 intentionally obstruct the filing of a report or record required by
15-21 law;
15-22 (5) engaging in unprofessional conduct, including the
15-23 violation of the standards of practice of radiologic technology
15-24 established by the Texas Board of Health;
15-25 (6) developing an incapacity that prevents the
15-26 practice of radiologic technology with reasonable skill,
15-27 competence, and safety to the public as the result of:
16-1 (A) an illness;
16-2 (B) drug or alcohol dependency; or
16-3 (C) another physical or mental condition or
16-4 illness;
16-5 (7) failing to report to the department the violation
16-6 of this Act by another person;
16-7 (8) employing, for the purpose of applying ionizing
16-8 radiation to a person, a person who is not certified under or in
16-9 compliance with this Act or otherwise authorized to perform
16-10 radiologic procedures;
16-11 (9) violating a provision of this Act, a rule adopted
16-12 under this Act, an order of the department previously entered in a
16-13 disciplinary proceeding, or an order to comply with a subpoena
16-14 issued by the department;
16-15 (10) having a certificate revoked, suspended, or
16-16 otherwise subjected to adverse action or being denied a certificate
16-17 by another governmental certification authority in another state,
16-18 territory, or country; or
16-19 (11) being convicted of or pleading nolo contendere to
16-20 a crime directly related to the practice of radiologic technology.
16-21 (d) A person subject to disciplinary action under Subsection
16-22 (c)(6) of this section shall, at reasonable intervals, be afforded
16-23 an opportunity to demonstrate that the person is able to resume the
16-24 practice of radiologic technology.
16-25 (e) The Texas Board of Health may not reinstate a
16-26 certificate [to a holder] or cause a certificate to be issued to an
16-27 applicant previously denied a certificate unless the board is
17-1 satisfied that the holder or applicant has complied with
17-2 requirements set by the board and is capable of engaging in the
17-3 practice of radiologic technology.
17-4 [(f) The department may take disciplinary action against a
17-5 student for intentionally practicing radiologic technology without
17-6 direct supervision.]
17-7 Sec. 2.10 [2.12]. Nontransferability of Certificate. A
17-8 certificate or program certificate issued under this Act is not
17-9 transferable.
17-10 Sec. 2.11 [2.13]. Penalty. (a) A person who is required to
17-11 hold a certificate [be certified] under this Act commits an offense
17-12 if the person:
17-13 (1) knowingly administers a radiologic procedure to
17-14 another person without holding a valid certificate issued by the
17-15 department;
17-16 (2) practices radiologic technology without holding a
17-17 certificate under this Act;
17-18 (3) uses or attempts to use a suspended or revoked
17-19 certificate;
17-20 (4) [knowingly allows a student enrolled in an
17-21 education program to perform a radiologic procedure without direct
17-22 supervision;]
17-23 [(5)] obtains or attempts to obtain a certificate
17-24 through bribery or fraudulent misrepresentation;
17-25 (5) [(6)] uses the title or name "certified medical
17-26 radiologic technologist" or any other name or title that implies
17-27 the person is authorized to perform [certified to practice]
18-1 radiologic procedures [technology], unless the person holds a
18-2 certificate or exemption from those requirements [is certified]
18-3 under this Act;
18-4 (6) [(7)] knowingly conceals information relating to
18-5 enforcement of this Act or rules adopted under this Act; or
18-6 (7) [(8)] employs a person not certified by or in
18-7 compliance with this Act for the purpose of applying ionizing
18-8 radiation to a person.
18-9 (b) An offense under this section is a Class B misdemeanor.
18-10 Sec. 2.12 [2.14]. Injunction; Civil Penalty. (a) If it
18-11 appears that a person has violated, is violating, or is threatening
18-12 to violate this Act or a rule adopted under this Act, the Texas
18-13 Board of Health or the department may bring a civil action to
18-14 obtain injunctive relief to restrain the continued or threatened
18-15 violation.
18-16 (b) A person who violates this Act or a rule adopted under
18-17 this Act is subject to a civil penalty in an amount that may not
18-18 exceed $1,000 for each day of violation.
18-19 (c) At the request of the Texas Board of Health or the
18-20 department, the attorney general shall bring an action in the name
18-21 of the state for injunctive relief, to recover a civil penalty, or
18-22 both, as authorized by this section.
18-23 Sec. 2.13. ADMINISTRATIVE PENALTY. (a) The department may
18-24 assess an administrative penalty against a person who violates this
18-25 Act or a rule adopted under this Act.
18-26 (b) The penalty may not exceed $1,000 for each violation.
18-27 Each day of a continuing violation constitutes a separate
19-1 violation.
19-2 (c) In determining the amount of an administrative penalty
19-3 assessed under this section, the department shall consider:
19-4 (1) the seriousness of the violation;
19-5 (2) the history of previous violations;
19-6 (3) the amount necessary to deter future violations;
19-7 (4) efforts made to correct the violation; and
19-8 (5) any other matters that justice may require.
19-9 (d) All proceedings for the assessment of an administrative
19-10 penalty under this Act are subject to Chapter 2001, Government
19-11 Code.
19-12 (e) If, after investigation of a possible violation and the
19-13 facts surrounding that possible violation, the department
19-14 determines that a violation has occurred, the department shall give
19-15 written notice of the violation to the person alleged to have
19-16 committed the violation. The notice must include:
19-17 (1) a brief summary of the alleged violation;
19-18 (2) a statement of the amount of the proposed penalty
19-19 based on the factors set forth in Subsection (c) of this section;
19-20 and
19-21 (3) a statement of the person's right to a hearing on
19-22 the occurrence of the violation, the amount of the penalty, or both
19-23 the occurrence of the violation and the amount of the penalty.
19-24 (f) Not later than the 20th day after the date on which the
19-25 notice is received, the person notified may accept the
19-26 determination of the department made under this section, including
19-27 the proposed penalty, or make a written request for a hearing on
20-1 that determination.
20-2 (g) If the person notified of the violation accepts the
20-3 determination of the department, the commissioner of health or that
20-4 commissioner's designee shall issue an order approving the
20-5 determination and ordering that the person pay the proposed
20-6 penalty.
20-7 (h) If the person requests a hearing, the department shall:
20-8 (1) set a hearing;
20-9 (2) give written notice of the hearing to the person;
20-10 and
20-11 (3) designate a hearings examiner to conduct the
20-12 hearing.
20-13 (i) The hearings examiner shall make findings of fact and
20-14 conclusions of law and shall promptly issue to the commissioner of
20-15 health or that commissioner's designee a proposal for decision as
20-16 to the occurrence of the violation and a recommendation as to the
20-17 amount of the proposed penalty if a penalty is determined to be
20-18 warranted.
20-19 (j) Based on the findings of fact and conclusions of law and
20-20 the recommendations of the hearings examiner, the commissioner of
20-21 health or that commissioner's designee by order may find that a
20-22 violation has occurred and may assess a penalty or may find that no
20-23 violation has occurred.
20-24 (k) The department shall give notice of the order under
20-25 Subsection (j) of this section to the person notified. The notice
20-26 must include:
20-27 (1) separate statements of the findings of fact and
21-1 conclusions of law;
21-2 (2) the amount of any penalty assessed; and
21-3 (3) a statement of the right of the person to judicial
21-4 review of the order.
21-5 (l) Not later than the 30th day after the date on which the
21-6 decision is final as provided by Chapter 2001, Government Code, the
21-7 person shall:
21-8 (1) pay the penalty;
21-9 (2) pay the penalty and file a petition for judicial
21-10 review contesting the occurrence of the violation, the amount of
21-11 the penalty, or both the occurrence of the violation and the amount
21-12 of the penalty; or
21-13 (3) without paying the penalty, file a petition for
21-14 judicial review contesting the occurrence of the violation, the
21-15 amount of the penalty, or both the occurrence of the violation and
21-16 the amount of the penalty.
21-17 (m) Within the 30-day period, a person who acts under
21-18 Subsection (l)(3) of this section may:
21-19 (1) stay enforcement of the penalty by:
21-20 (A) paying the penalty to the court for
21-21 placement in an escrow account; or
21-22 (B) giving to the court a supersedeas bond that
21-23 is approved by the court for the amount of the penalty and that is
21-24 effective until all judicial review of the order is final; or
21-25 (2) request the court to stay enforcement of the
21-26 penalty by:
21-27 (A) filing with the court a sworn affidavit of
22-1 the person stating that the person is financially unable to pay the
22-2 amount of the penalty and is financially unable to give the
22-3 supersedeas bond; and
22-4 (B) giving a copy of the affidavit to the
22-5 department by certified mail.
22-6 (n) If the department receives a copy of an affidavit under
22-7 Subsection (m)(2) of this section, the department may file with the
22-8 court, within five days after the date the copy is received, a
22-9 contest to the affidavit. The court shall hold a hearing on the
22-10 facts alleged in the affidavit as soon as practicable and shall
22-11 stay the enforcement of the penalty on finding that the alleged
22-12 facts are true. The person who files an affidavit has the burden
22-13 of proving that the person is financially unable to pay the penalty
22-14 and to give a supersedeas bond.
22-15 (o) If the person does not pay the penalty and the
22-16 enforcement of the penalty is not stayed, the department may refer
22-17 the matter to the attorney general for collection of the penalty.
22-18 (p) Judicial review of the order:
22-19 (1) is instituted by filing a petition as provided by
22-20 Subchapter G, Chapter 2001, Government Code; and
22-21 (2) is under the substantial evidence rule.
22-22 (q) If the court sustains the occurrence of the violation,
22-23 the court may uphold or reduce the amount of the penalty and order
22-24 the person to pay the full or reduced amount of the penalty. If
22-25 the court does not sustain the occurrence of the violation, the
22-26 court shall order that no penalty is owed.
22-27 (r) When the judgment of the court becomes final, the court
23-1 shall proceed under this subsection. If the person paid the amount
23-2 of the penalty under Subsection (l)(2) of this section and if that
23-3 amount is reduced or is not upheld by the court, the court shall
23-4 order that the department pay the appropriate amount plus accrued
23-5 interest to the person. The rate of the interest is the rate
23-6 charged on loans to depository institutions by the New York Federal
23-7 Reserve Bank, and the interest shall be paid for the period
23-8 beginning on the date the penalty was paid and ending on the date
23-9 the penalty is remitted. If the person paid the penalty under
23-10 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
23-11 if the amount of the penalty is not upheld by the court, the court
23-12 shall order the release of the escrow account or bond. If the
23-13 person paid the penalty under Subsection (m)(1)(A) of this section
23-14 and the amount of the penalty is reduced, the court shall order
23-15 that the amount of the penalty be paid to the department from the
23-16 escrow account and that the remainder of the account be released.
23-17 If the person gave a supersedeas bond and if the amount of the
23-18 penalty is reduced, the court shall order the release of the bond
23-19 after the person pays the amount.
23-20 (s) An administrative penalty collected under this section
23-21 shall be deposited in the state treasury to the credit of the
23-22 general revenue fund.
23-23 (t) The department may assess reasonable expenses and costs
23-24 against a person in an administrative hearing if, as a result of
23-25 the hearing, an administrative penalty is assessed against the
23-26 person. The person shall pay expenses and costs assessed under
23-27 this subsection not later than the 30th day after the date of the
24-1 order of the commissioner of health or that commissioner's designee
24-2 requiring the payment of expenses and costs is final. The
24-3 department may refer the matter to the attorney general for
24-4 collection of the expenses and costs.
24-5 (u) If the attorney general brings an action against a
24-6 person to enforce an administrative penalty assessed under this
24-7 Act and the person is found liable for an administrative penalty,
24-8 the attorney general may recover, on behalf of the attorney general
24-9 and the department, reasonable expenses and costs.
24-10 (v) For purposes of this section, "reasonable expenses and
24-11 costs" includes expenses incurred by the department and the
24-12 attorney general in the investigation, initiation, or prosecution
24-13 of an action, including reasonable investigative costs, court
24-14 costs, attorney's fees, witness fees, and deposition expenses.
24-15 (w) Costs and expenses collected under this section shall be
24-16 deposited in the state treasury to the credit of a special account
24-17 that may be appropriated only to the department. Section 403.095,
24-18 Government Code, does not apply to the account.
24-19 SECTION 2. (a) Section 8, Chapter 613, Acts of the 74th
24-20 Legislature, Regular Session, 1995 (Article 4512m, Vernon's Texas
24-21 Civil Statutes), is repealed.
24-22 (b) Sections 3.01(c), (d), and (e), Chapter 1096, Acts of
24-23 the 70th Legislature, Regular Session, 1987, are repealed.
24-24 SECTION 3. The training requirements adopted under Section
24-25 2.04, Medical Radiologic Technologist Certification Act (Article
24-26 4512m, Vernon's Texas Civil Statutes), as amended by this Act,
24-27 apply only to a person performing a radiologic procedure on or
25-1 after September 1, 1998.
25-2 SECTION 4. This Act applies only to a certificate to perform
25-3 radiologic procedures that is issued or renewed by the Texas
25-4 Department of Health on or after the effective date of this Act. A
25-5 certificate issued or renewed before that date is governed by the
25-6 law in effect on the date the certificate was issued or renewed,
25-7 and the former law is continued in effect for that purpose.
25-8 SECTION 5. This Act takes effect January 1, 1998.
25-9 SECTION 6. The importance of this legislation and the
25-10 crowded condition of the calendars in both houses create an
25-11 emergency and an imperative public necessity that the
25-12 constitutional rule requiring bills to be read on three several
25-13 days in each house be suspended, and this rule is hereby suspended,
25-14 and that this Act take effect and be in force according to its
25-15 terms, and it is so enacted.